UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-2060

WALTER LEE WHITAKER,

Plaintiff - Appellant,
v.
NASH-ROCKY MOUNT BOARD OF EDUCATION, d/b/a Nash-Rocky Mount
Public Schools; RICHARD A. MCMAHON, Superintendent; CARINA
BRYANT, Southern Nash Middle School Principal,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:11-cv-00246-BO)

Submitted:

March 23, 2012

Decided:

April 6, 2012

Before DAVIS, WYNN, and DIAZ, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Walter Lee Whitaker, Appellant Pro Se.

Lewis Wardlaw Lamar,
Jr., THE VALENTINE LAW FIRM, Nashville, North Carolina, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Walter Lee Whitaker appeals the district courts order
granting
dismiss

the
his

defendants
complaint

Fed.

R.

raising

Civ.

12(b)(6)

under

Title

claims

P.

motion
VII

of

to
the

Civil Rights Act of 1964, 42 U.S.C.A. 2000e to 2000e-17 (West

2003

&

Supp.

2011)

(Title

VII),

and

the

Americans

with

Disabilities Act of 1990, 42 U.S.C. 12101 to 12213 (2006)

(ADA).

Whitaker challenges the district courts determination

that his claims are barred by res judicata.

Whitakers

current

claims

are

the

same,

At issue is whether
for

purposes

of

res

judicata, as those raised in his previous appeal, pursuant to

N.C.

Gen.

Stat.

115C-325(n)

(2011),

to

the

North

Carolina

superior court seeking review of the Nash-Rocky Mount Board of

Educations (Board) decision not to renew Whitakers contract
for employment as a probationary public school teacher.
We review de novo a district courts Rule 12(b)(6)
dismissal, Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.
2008), and are bound under 28 U.S.C. 1738 (2006) to apply the
law of the rendering state to determine the extent to which a
state court judgment should have preclusive effect in a federal
action.

See Davenport v. North Carolina Dept of Transp., 3

F.3d 89, 92-93 (4th Cir. 1993).

In North Carolina, the doctrine

of res judicata will bar a claim when there is (1) a final

judgment

on

the

merits

in

an

earlier
2

suit,

(2)

both

cases

involve the same cause of action, and (3) the new claim involves
the same parties as the earlier suit, or their privies.

State

ex rel. Tucker v. Frinzi, 474 S.E.2d 127, 128 (N.C. 1996).

As

we

previously

discussed

in

Davenport,

North

Carolina utilizes a modified form of the transactional approach

to

determine

purposes.
approach,

whether

claims

are

the

same

See Davenport, 3 F.3d at 93-97.

North

Carolina

tempers

the

broad

for

res

judicata

Pursuant to this
claim

preclusive

effect of a pure transactional methodology with case-specific

considerations based on prudential and equitable concerns.

See

id.; Country Club of Johnson County, Inc. v. United States Fid.

&

Guar.

Co.,

563

S.E.2d

269,

275

(N.C.

Ct.

App.

2002);

Northwestern Fin. Group v. County of Gaston, 430 S.E.2d 689, 694

(N.C. Ct. App. 1993).
In keeping with this approach, North Carolina courts
are reluctant to apply the bar of res judicata where the claim
in question could not have been raised or fully adjudicated in
the initial proceeding.

See Davenport, 3 F.3d at 93-97; Country

Club of Johnson County, 563 S.E.2d at 275; Spry v. WinstonSalem/Forsyth County Bd. of Educ., 412 S.E.2d 687, 689 (N.C. Ct.
App. 1992).

Accordingly, under North Carolina law, res judicata

will not bar successive suits or claims, even when based on the
same predicate facts, where the complaining party has not had an
opportunity to litigate, in a single judicial proceeding, all
3

claims arising from the transaction or events at issue.

See

Davenport, 3 F.3d at 96-97.

Here, we conclude that, based on the limited nature of
the judicial proceeding afforded Whitaker under 115C-325(n),
North

Carolina

would

not

consider

the

claims

raised

in

Whitakers previous appeal and those asserted in his instant

suit to be the same for purposes of res judicata.

First, under

North Carolina law then in force, Whitaker had no right to a

hearing, discovery, or an opportunity to present evidence prior
to the Boards decision not to renew his contract.

Moore v.

Charlotte-Mecklenburg Bd. of Educ., 649 S.E.2d 410, 415-18 (N.C.

Ct. App. 2007).
Further,

under

115C-325(n),

the

appeal

to

the

superior court was limited to the evidence before the school

board * and whether the school boards actions
Carolina law.
could

have

superior

raised

court,

discovery,

Id. at 416-19.

the

he

his

ability

Accordingly, even if Whitaker

current

would
to

violated North

federal

have

done

present

law
so

claims

without

relevant

before
a

right

evidence,

or

the
to
the

On motion, Whitaker was allowed to supplement the record

before the superior court with additional documents.
As the
superior
courts
opinion
indicates,
however,
this
supplementation was not as of right, and was allowed based on
the courts finding of just cause and a lack of opposition from
the Board.

privilege of having his case heard by a jury.

Moreover, due to

the procedural incongruities of adjudicating the appeal of a

state

agencys

administrative

decision

alongside

newly

raised

federal law claims, it is unlikely that the superior court would

or could have allowed Whitaker to join new, federal claims with
his appeal under 115C-325(n).

Davenport, 3 F.3d at 97 n.8.

Therefore, because Whitaker could not have effectively raised or

fully

adjudicated

challenge

to

the

his

current

non-renewal

of

claims
his

during

contract,

his
we

previous

find

that,

under North Carolina law, they are not barred by res judicata.
See Davenport, 3 F.3d at 96-97.
Accordingly,
dismissing

Whitakers

we

vacate

complaint

the

district

and

proceedings consistent with this opinion.

remand

courts
for

order
further

We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would
not aid the decisional process.
VACATED AND REMANDED